Larry Catá Backer's comments on current issues in transnational law and policy. These essays focus on the constitution of regulatory communities (political, economic, and religious) as they manage their constituencies and the conflicts between them. The context is globalization. This is an academic field-free zone: expect to travel "without documents" through the sometimes strongly guarded boundaries of international relations, constitutional, international, comparative, and corporate law.

The Zhiwei Tong (童之伟) Series focuses on translating some of
Professor Tong's work on issues of criminal law and justice in China, matters
that touch on core constitutional issues. Each of the posting will
include an English translation from the original Chinese, the Chinese original
and a link to the original essay site. Many of the essays will include
annotations that may also be of interest. I hope those of you who are
interested in Chinese legal issues will find these materials, hard to get in
English, of use. I am grateful to my research assistant, YiYang Cao for
his able work in translating these essays.

The draft of the People’s Republic of China Code of
Criminal Procedure Amendment states: China’s current criminal procedural
code was enacted in 1979 and amended in 1996 at the Fourth Session of the
Eighth National People’s Congress. The
practice has proved that the design and overall configuration of authority of
Chinese criminal procedure have on the whole been scientific and
reasonable. So far,
incompatible problems have propped up only in some areas and it is these areas
that improvement is necessary.

The reality is quite different, according to Professor
Tong. The current criminal procedure and
the overall configuration of authority does not meet adhere to the spirit of
seeking truth from facts, and as a result cannot correctly reflect the relevant
aspects of the truth. The reality shows
that the handling of criminal cases and proceedings by Chinese courts,
procuratorate and public security agencies have been very unscientific and
unreasonable. As a result, fundamental
reforms should be made. Unfortunately,
the principal institution assigned to revise the Code of Criminal Procedure has
failed to see these major drawbacks.
These drawbacks include:

1.Too
much police power granted and continually broadened beyond the framework of the
Constitution and legal boundaries.

In the Constitution,
the public security apparatus is only a departmental level entity, lower than
the positions of the corresponding regional courts and procuratorates. However, the reality is far different. The political and party status of a head of a
public security department is, in fact, above that of the president of a court
and the head of the procuratorate. This
kind of situation is understood by all adult Chinese citizens and thus there is
no need to enumerate the evidence. We
can see from the role of the public security apparatus in the handling of
various disclosed criminal cases; from its role throughout the investigation
process; from its role in the examination, prosecution and trial process; and
from its role in the Chongqing anti-crime campaign and from the charade put on
by the Beihai police department that a strong and unfettered public security
apparatus is difficult to constrain.

In the world today, I
do not know of any other country where a police department possesses as much
authority and as capable of overpowering the authority of their counterparts in
other departments to such a degree. If
you give me more time, I can find enough information to prove that:

a.The drafting of the amendment of
China’s Criminal Procedure Code and the legislative interpretation has largely
been led by the police departments and its representatives. Therefore, any legislative interpretation and
changes reflect the hopes and wishes of the police departments.

b.The phrase, “practice has proved that
China’s Criminal Procedure Code and configuration of power is scientific and
reasonable.” This probably reflects the
view of the police department.

A society and country
governed by rule of law is incompatible with a police state or police community.

2.The
application of current Criminal Procedure Code over the past ten years has
resulted in an extraordinary number of defendants have been unjustly sentenced
to death. This shows that the current
focus of criminal procedure and authority is insufficient to protect the lives
of citizens from illegal deprivation by organizations with public authority.

Over the last decade,
an extraordinary number of defendants have been unjustly sentenced to
death. The common people have found out
about the injustices within a number of sensational cases

a.She Xianglin “wife murder” case

b.the Zhao Zuohai “murder and
dismemberment” case

c.Niu Shubin “rape and murder” case

There are other cases
that the author has verified one by one, written papers studying death penalty
injustice cases, including:

k.Chen Guoqing, He Guoqiang and 4 others
“robbery and murder” case in Hebei

l.Zhao Fenrong “murder using poison” case
in Shaanxi

In October 2010, I
bookmarked a list published by Lin Zhaoliang on the internet called Injustices
Exposed by the Media in the Last Few Years.
The list was later deleted, but on September 24, 2011, I found the list
on the joneswell blog. The list was
populated by defendants and suspects facing unjust charges that could result in
the death penalty. Many of those on the
list included individuals that I had not discovered I wrote my paper. The list included cases that I had seen in
the last few years and cases that had not been reported. However, all of these cases are readily
accessible online. From my research,
though I have not had the time to examine whether the details of the case is
consistent with the reported characterization, I can almost completely confirm
that all of these miscarriages of justice are listed truthfully. These cases include:

a.Teng Xingshan, an
18 year old boy from Hunan was found
guilty and executed for murder and dismemberment; 10 years after his death, the
real murderer was captured

b.Yang Mingying of
Hunan’s 10-year imprisonment for murder was overturned

c.Huang Aibin of
Hubei was sentenced to death for intentional homicide, but was released after 4
years

d.Sun Shaohua of
Jilin was charged with killing three people and burning their bodies; was released
after serving 11 years

e.After 15 years of
imprisonment for rape, Xu Jibin of Hebei was cleared of his charges

f.Charged with raping a young girl, Song Baomin of Hebei died in prison

g.After 8 years of imprisonment for
raping and murdering a young woman, Xu Dongchen of
Hebei was released

h.After suffering
from 2 years of torture, Li Jiuming of Hebei was cleared of an intentional homicide charge

i.After 10 years of
imprisonment for raping a female teacher, Meng Cunming of Hebei was acquitted
and released

j.Hao Jin’an of
Henan was on death row for ten years for robbery and murder before being
reprieved

k.Zhang Congming from
Henan was imprisoned for 6 years for robbery and murder before being acquitted

l.Xu Jingxiang of
Henan was imprisoned for 13 years for robbery and theft before being released

m.Qin Yanhong of
Henan was in custody for rape and murder of young woman for four years before
acquittal

n.Wang Haijun of
Jilin was unjustly imprisoned for 19 years for murder before being acquitted

o.Huang Yaquan and
Huang Shengyu were imprisoned for 10 years for robbery before being acquitted

p.Tu Jingxin of Jiangxi was on death row
for 7 years for corruption before being acquitted

q.Ye Lieyan of Jiangxi was acquitted and released from long-term detention on
the charge of criminal explosion

r.Chen Shijiang of
Shandong was acquitted of intentional homicide after eight years of
imprisonment

s.Tan Junhu and Lan
Yongkui of Guangxi were imprisoned for 4 years for robbery and murder before
being acquitted

t.Tong Limin of Chongqing
was imprisoned for 4 years for raping, murdering, and mutilating the nanny
before being acquitted

u.Gao Jinfa of Shaanxi was on death row for three years for raping and
murdering a young girl before being acquitted

v.Li Jiedeng and
four others of Sichuan were imprisoned for 8 years for intentional homicide before
being acquitted

w.Yang Yunzhong of
Heilongjiang was wrongfully imprisoned for 7 years for intentional homicide
before being acquitted

x.Sun Wangang of Yunnan
was on death row for 8 years for rape, murder, and dismemberment before being
reprieved

y.Chen Jinchang of Yunnan
was on death row for two years for robbery and murder; was released after the
real murderer was arrested

z.Wang Shuhong of
Yunnan was arrested for raping and murdering a prostitute; tortured while
imprisoned, he was crippled by electric shocks

In general, most of these unjust cases involved homicide
and initial guilty verdicts were overturned upon the discovery of the “actual
murderer” or the alleged murder victim reappears. However, the likelihood of
these two situations is not high. As a
result, it can be concluded that the number of miscarriages of justice is high
not only in capital cases, but also in other criminal acts as well.

3.Existing
criminal procedure and configuration of authority is unable to constrain police
from acting illegally, therefore is not enough to protect the safety and
freedom of citizens from abuse of police power.

There are many local
police departments that arbitrarily arrest and jail people, including
incidences of mass arrests and arrest first and ask questions later all are
rarely constrained, while the use of torture to force confessions has largely
become universal. In this regard, I
believe that a Chinese adult citizen have seen and heard too many stories about
the police. From a longer term
perspective, in the case of Mr. She Xianglin, it was not only that he was
wrongfully arrested and given a suspended death sentence, but because his
mother appealed, she was imprisoned for nine months, while his brother was
imprisoned for forty-one days. A fellow
villager who gave evidence in support of Mr. She was also imprisoned for three
months. From such a case, we can see
that the personal rights and freedoms of four individuals have been illegally
infringed upon. Taking a shorter term
perspective, this is similar to the infamous “lump of feces” case in Chongqing,
where in a clear miscarriage of justice, Mr. Fang Hong spent a year in a labor
reeducation camp. According to the
Chongqing police department dealing with the case, Fang Hong’s son, wife and
daughter “disappeared” after they were released. Even now, no one knows if they had actually
been released (though logically, they should have been released already). Even individuals who hold a degree of
international attention are arbitrarily arrested and deprived of their personal
freedoms. This article only speaks to a
number of well-known cases. The reality
is that these kinds of cases occur almost daily and hourly.

In particular, the
use of torture to force confessions or the use of torture to change confessions
(an illegal practice largely extinct in other countries and regions under rule
of law) and barbarous methods of interrogation have become largely universal in
many regions of the country. The Chinese
use of torture to force confessions is not only a topic of concern to
international human rights organizations, but also a daily topic of concern
amongst its citizens. People can see
from a variety of media sources that behind almost every instance of injustice,
wrongful prosecution or cases that result in public discontent all there is one
or more stories about torture. The 1.3
billion citizens of China all but ignore media reports of individuals brought
up on torture under Chinese criminal law.
In fact, they treat those instances where charges of torture are brought
up as nothing more than faking for the public.
We are supposed to protect citizens’ personal rights and freedoms and
protect the innocent from prosecution, and yet we can neither curb the
universalization of torture nor ensure that those individuals who commit
torture are prosecuted. From this point
alone, we can clearly see that the design of the current Criminal Procedural
Code is neither “scientific” nor “reasonable.”

4.Existing
criminal procedure and configuration of authority does not effectively protect
the courts to allow it to exercise judicial power independently and does not
allow for mutual constraint to be exercised between the courts, procuratorate
and public security agencies that handle criminal cases.

The Constitution
provides that the court, the procuratorate and the public security departments shall
divide responsibilities, coordinate, and mutually constrain each other when
handling criminal cases in order to ensure the correct and effective
enforcement of the laws. Over the last several
years, people have only seen these three working together in a complementary
fashion to ensure that a suspect or a defendant is convicted. There is very little to no mutual restraint. As a result, the court basically almost never
finds for the defendant. In addition,
when the procuratorate handles its own cases, it has the authority to decide to
arrest the suspect. This kind of
arrangement is in direct violation of the tripartite arrangement of mutual
restraint. Although the reasons for
these conditions are complex, at least it gives the people a reason to believe
that the existing Criminal Procedure Code is unable to curb these kinds of
unconstitutional actions from occurring.

Because of the lack
of mutual restraint, the out of control use of technical investigation and
analysis has created a situation where no one is safe and secure. For years, China’s approach has been to rely
upon the police departments to conduct their investigations entirely based on its
own needs and without court or procuratorate approval. Intellectuals all know that China’s police
departments have the power to unilaterally conduct all kinds of surveillance
activities. And because of this lack of
constraints, there are no time limits on how long a police department can conduct
its investigation into the crimes committed by a suspect. In order to ensure the guilt of a suspect or
defendant, even when the case has reached the courts, the police departments
has the power to conduct and engage in virtually unlimited supplementary
investigations. Furthermore, this lack
of mutual restraint leads to an imbalance of power between the prosecution and
the defense with judges accustomed to standing on the side of the prosecution
when considering issues.

5.Other
problems

In addition to the
aforementioned four major issues, the existing Criminal Procedure Code and
configuration of authority has other severe drawbacks, which are briefly
described here:

a.The behavior of the long-term
deprivation of citizens’ personal freedom by assigning them to labor
reeducation camps, a form of punishment that is not included and is not
adjustable by the existing Criminal Procedure Code. From a constitutional perspective, this kind
of behavior has long been criticized as allowing the existence of a form of
punishment that is incompatible with building a country governed by rule of law
and the basic constitutional requirements of respecting and protecting human
rights. By itself, the existence of such
a measure shows that the existing Criminal Procedure Code and configuration of
authority is outdated, a throwback to the pre-capitalist era. The personal rights and freedoms of Chinese
citizens should be protected by a judicial process.

b.Shuanggui system should be included in
the judicial process, as party members should have the right to equal
protection under the Criminal Procedure Code.
Currently, however, existing criminal procedure is not designed to
protect these individuals’ personal rights and freedoms.

c.Lawyers often cannot or do not dare to
provide adequate legal defense to those being criminally prosecuted. The number of lawyers willing to serve as a
defense attorney is decreasing as they face difficulties from multiple
fronts. Criminal defense lawyers are not
offered the safety guarantees that would enable them to seriously investigate
and collect evidence. Attempts to meet
their clients and witnesses are often with obstacles. Worse, they do not play a part in the
punishment phase of a trial. This is a
situation that the entire society has witnessed over the last decade.

d.There are no guarantees for a public
trial. The more attention a case
receives from the people and the community, and the more serious the case, the
more likely that the trial will not be public.
A public trial is one of the best ways of ensuring oversight over how
courts, procuratorates and public security departments handle criminal
cases. In practice, the behavior over the
past decade has rendered this constitutional provision bogus.

Ultimately, the
agencies and officials drafting the Code of Criminal Procedure Amendment
are seriously divorced from reality.
Only those with courage to stand up and face these inadequacies will be
able to restrain them. Only through
truthful and factual examination will it be possible to amend the Criminal
Procedure Code.

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Copyright & Citation:

All essays are (c) Larry Catá Backer. The essays may be cited and quoted with appropriate reference as follows: Larry Catá Backer, [Essay Title], Law at the End of the Day, ([Essay Posting Date]) available at [http address]. Thanks!All rights reserved.

Globalization Law and Policy Series from Ashgate Publishing

Globalization: Law and Policy will include an integrated bodyof scholarship that critically addresses key issues and theoretical debates in comparative and transnational law. Volumes in the series will focus on the consequential effects of globalization, including emerging frameworks and processes for the internationalization, legal harmonization, juridification and democratization of law among increasingly connected political, economic, religious, cultural, ethnic and other functionally differentiated governance communities. This series is intended as a resource for scholars, students, policy makers and civil society actors, and will include a balance of theoretical and policy studies in single-authored volumes and collections of original essays.

An interview with the Series EditorQueries and book proposals may be directed to:Larry Catá BackerW. Richard and Mary Eshelman Faculty Scholarand Professor of Law, Professor of International AffairsPennsylvania State University239 Lewis Katz BuildingUniversity Park, PA 16802email: lcb911@gmail.com

About Me

I hope you enjoy these essays. Each treats aspects of the relationship between law, broadly understood, and human organization. My essays are about government and governance, based on the following assumptions: Humans organize themselves in all sorts of ways. We bind ourselves to organization by all sorts of instruments. Law has been deployed to elaborate differences between economic organizations (principally corporations, partnerships and other entities), political organization (the state, supra-national, international, and non-governmental organizations), religious, ethnic and family organization. I am not convinced that these separations, now sometimes blindly embraced, are particularly useful. This skepticism serves as the foundation of the essays here. My thanks to Arianna Backer for research assistance.